The Catholic University of America, Columbus School of Law
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Faculty Scholarship
2001
Misattribution in Legal Scholarship: Plagiarism,
Ghostwriting, and Authorship
Lisa G. Lerman
The Catholic University of America, Columbus School of Law
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Part of the Ethics and Professional Responsibility Commons, and the Legal Education Commons
Recommended Citation
Lisa G. Lerman, Misattribution in Legal Scholarship: Plagiarism, Ghostwriting, and Authorship, 42 S. TEX. L. REV. 467 (2001).
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MISATTRIBUTION IN LEGAL SCHOLARSHIP:
PLAGIARISM, GHOSTWRITING, AND
AUTHORSHIP
LISA
G. LERMAN*
I. INTROD UCTION ............................................................................
467
II. A U TH O RSH IP ................................................................................
472
III. PLA G IA RISM .................................................................................
474
A . Ghostw riting ..........................................................................
476
B. The Harmful Effects of Plagiarismin Legal Scholarship.476
C. How Often Do Law ProfessorsEngage in Plagiarism...... 479
IV. WHAT TO DO ABOUT DISHONEST LAW PROFESSORS ........... 483
V. PERPETUATING THE DOUBLE STANDARD .............................. 488
VI. STANDARDS FOR AUTHORSHIP OF LEGAL SCHOLARSHIP .... 489
V II. C ONCLU SION ................................................................................
491
Plagiarize, let no one else's work evade your eyes,
Remember why the good Lord made your eyes,
So don't shade your eyes,
But plagiarize, plagiarize, plagiarizeOnly be sure always to call it please "research."'
I.
INTRODUCTION
Plagiarism is a capital offense for law students. A law student
who uses the words or ideas of someone else without proper
attribution may be suspended or expelled from law school.2 This
* Professor of Law and Director of the Law and Public Policy Program, The
Columbus School of Law, The Catholic University of America, Washington, DC; B.A.,
Barnard College, Columbia University, 1976; J.D., New York University School of Law,
1979; LL.M., Georgetown University Law Center, 1984.
1. Tom Lehrer, Lobachevsky.
2. E.g., Easley v. Univ. of Mich. Bd. of Regents, 906 F. 2d 1143, 1143-46 (6th Cir.
1990) (affirming the court's prior decision upholding the decision of a law school to
withhold a student's degree as punishment for plagiarism); In re Lamberis, 443 N.E.2d 549,
552-53 (I11.1982) (censuring a lawyer who had been expelled from LL.M. program at
Northwestern University after he was found to have plagiarized about forty-six pages of his
thesis from two other works without attribution; dissent recommended a three-month
suspension).
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[Vol. 42:467
guillotine may fall even if the plagiarism was not an intentional
passing off but was the product of ineptitude or of an educational
deficit.' A law student plagiarist who is allowed to graduate may be
denied admission to the bar on the basis of the offense committed
during law school, especially if there are other allegations of unethical
behavior.4 A lawyer who has been admitted to the bar, on the other
hand, may plagiarize to his heart's content without fear of negative
consequences It is as if admission to the bar is like walking through a
looking-glass. On one side, plagiarism is considered to be the most
egregious variety of dishonesty. On the other side, the use of the
words and ideas of others without attribution is not regarded as
raising any ethical concern.
Many inexperienced lawyers spend several years allowing more
senior lawyers to pass off the junior lawyers' work as that of the senior
lawyers. Eventually the junior lawyers attain enough status in their
firms or government agencies that they are able to stop doing writing
that is attributed to others and to begin publishing work written by
others under their own names. Let me elaborate.
A law school graduate who becomes a judicial clerk probably will
spend a year or two ghostwriting for a judge. Some judges write their
3. See discussion infra Part V.
4. Helen Tyne Mayfield, for example, was denied admission to the bars of Texas,
Michigan, and Illinois because of several allegations of misconduct, including that she had
been "suspended from.., law school for violating its honor code by committing attempted
plagiarism and solicitation by improperly arranging for two individuals to translate legal
materials for her class project." Aaron Chambers, Third Time No Charm for Would Be
Lawyer, CH. DAILY L. BULL., June 11, 1999, at 3 (June 11, 1999) (discussing other
allegations of various misrepresentations and financial improprieties, including failure to
disclose two arrests on her application to the bar). But see In re Zbiegien, 443 N.W.2d 871,
875, 877 (Minn. 1988) (deciding that "a single incident of plagiarism while in law school is
[not] necessarily sufficient evidence" of lack of moral character; ordering admission of
applicant despite the fact that he plagiarized most of the first twelve pages of a paper
prepared while a student at William Mitchell Law School).
5. In Fed. Intermediate CreditBank of Louisville v. Kentucky Bar Ass'n, 540 S.W.2d
14, 16 n.24 (Ky. 1976), the Supreme Court of Kentucky stated a commonly held view that
"[liegal instruments are widely plagiarized, of course. We see no impropriety in one
lawyer's adopting another's work, thus becoming the 'drafter' in the sense that he accepts
responsibility for it."
While most lawyers who misappropriate the work of others suffer no adverse
consequences, there are a few cases in which lawyers have been censured for plagiarism.
See Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18
CARDOZO L. REV. 1253, 1254 n.10 (1996) (citing In re Hinden, 654 A.2d 864, 865-66 (D.C.
1995) (censuring lawyer publically for plagiarizing forty-three paragraphs of a chapter of a
treatise); In re Steinberg, 620 N.Y.S.2d 345, 346 (N.Y. App. Div. 1994) (censuring lawyer
for submitting a writing sample under his own name which had been written by another
person)).
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MISA TTRIB UTION IN LEGAL SCHOLARSHIP
own opinions,6 but many delegate part or all of the drafting work to
the clerks.7 Some judges supervise and edit their clerks' work on the
draft opinions; some judges do not. There are judges who delegate to
the clerks the decisions as to what results should be reached in
particular cases, others who direct the result but delegate the research
and analysis of the legal grounds for the decisions, and still others
delegate only the drafting of the opinions.' Some judges sign off on
their clerks' opinions with little or no supervisory or editorial input.9
Regardless of the extent of the clerks' responsibility for drafting
opinions, judges publish opinions under their own names. The work of
law clerks is almost never acknowledged." Law clerks generally feel
privileged to have the opportunity to work for judges and accept the
ghostwriting role without question. Many clerks regard it as unethical
even to identify which opinions they drafted.
After completing a clerkship, a new lawyer may become an
associate at a law firm where he may write memos, briefs, and articles,
many of which will be filed, circulated, or published without his name
on them or with his name listed after the names of more senior
lawyers in the firm." A brief may be written by four or five lawyers,
6. Judge Posner reports:
There are a great many judges who would like nothing better than to do their
own research and writing-who did their own research and writing before the
workload pressures became overwhelming. The problem is that... the caseload
per federal judge has risen to the point where very few judges, however able and
dedicated, can keep up with the flow without heavy reliance on law clerks, staff
attorneys, and sometimes externs too.
RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 103 (1985).
7. Dursht, supra note 5, at 1253 n.2 ("Ghostwriting in the context of courts is law
clerks writing the opinions, and not the judges.")
8. I have heard from former students accounts of each of these variations among the
judges for whom they clerked.
9. I interviewed one prominent lawyer, for example, who reported how shocked he
was when he found that the judge for whom he had clerked did not even read his draft
opinions before issuing them.
10. I conducted a Lexis search of federal court opinions and turned up eight opinions
in which the judge, in a footnote, acknowledged the assistance of a law clerk in drafting the
opinion. The search, conducted July 5, 1993, was in the Courts file of the Genfed library,
which then included most reported federal court opinions, including United State Supreme
Court decisions from 1790, decisions of the Courts of Appeals from 1789, and decisions
from the District Courts from 1789. A typical example of the eight is Masayesva v. Zah,
794 F. Supp. 899, 900 (D. Ariz. 1992), in which Judge Carroll states in a note, "I would like
to acknowledge the substantial assistance of Kristen Rosati, my second year law clerk, in
research and preparation of this order."
11. Several law student research assistants and I interviewed approximately thirty
lawyers for another project on the attribution of written work in the legal profession. In
this essay, I offer the comments of one particularly articulate subject from the previous
study. The subjects were promised confidentiality, so this subject has been assigned the
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[Vol. 42:467
with the lion's share of the research and writing done by the most
junior lawyer in the group. The senior lawyers may decide that the
judge or the client would be displeased by the appearance of so many
names on the brief. Often the first name to be dropped from the list is
that of the most junior lawyer. If the unacknowledged author of the
brief has done a particularly good job, a judge (or the judge's clerk)
may incorporate a section of the brief into an opinion on the casewithout acknowledgment, of course. This is considered the highest
form of intellectual flattery.
An associate in a law firm may be enlisted by a partner to write
or to co-author a law review article on a topic of interest to the firm's
clients. The article may be published under the partner's name alone,
even if the associate wrote the entire piece." The "author" may write
a footnote gratefully acknowledging the assistance of the associate in
preparing the article. 4 These footnotes seldom include any
information about what, were the respective roles of the partner and
the associate in writing the article. The partner might explain this
practice as a marketing strategy. The partner might justify his failure
to list the associate as an author on the basis of the partner's
intellectual guidance of the work. He might urge that the associate
was just putting the partner's ideas on paper. The partner might urge
that no credit is due because the associate got paid for the work, so
therefore it is a "work for hire" and the property of the partner or the
fictitious name of "Steven Heller." He was interviewed by then research assistant Christine
Stevenson on May 30, 1992.
Mr. Heller described several examples of variance between who did the work on
a document in private practice and who was listed as an author. He said:
There are times when [other] people have done the work and I listed my name
above theirs .... And the associate junior to me did most of the work, I edited
and I researched a few things... not more than ten percent. I think the
understanding ... is... the first name is the most senior person who bears the
most responsibility for the product, the second name is there to indicate in fact
who did the work.
id.
12. This practice occurs in government agencies as well as in private law firms,
according to several government lawyers I have interviewed.
13. "Steve Heller" explained:
I provided enormous assistance on the preparation of a legal text and I wouldn't
say that I deserved to be an author... [laughter] because there was the basic text
and then there was the supplement, but verbatim the first thirty or forty percent
of the supplement I wrote, with almost no changes [made by anyone else]... I'm
mentioned in the forward and it says "thank you for this help." I don't think that
is uncommon.... But the fact is a substantial portion of the supplement was
written by me.
Heller interview, supra note 11.
14. Id.
2001]
IISA TTRIB UTION IN LEGAL SCHOLARSHIP
firm.
Outright misappropriation of the words and ideas of others is
somewhat less common in legal academe than in the practice of law.
Many people who become law professors actually like to do their own
writing. Also, many law professors are scrupulous about proper
attribution when we draw from the words and ideas of others, whether
those others are other scholars or law student research assistants. Our
positions in law schools allow us-especially after tenure-to write on
topics that interest us at whatever pace suits us. We experience little
of the time pressure or economic pressure that burdens lawyers in
practice.
Although many professors have high standards of academic
integrity, there is a wide spectrum of views among law professors
about whether and when one may use the work of another without
attribution. Some law professors use lengthy tracts written by their
research assistants in their own books or articles, representing that
they wrote the work themselves. 5 Some acknowledge the "able
assistance" of research assistants in footnotes. 6 Very few explain that
"sections II and III of this article were drafted by X." Even fewer
make the research assistant a co-author or put quotation marks
around the section written by the student.
Law professors-who, like practicing lawyers, are experts in
rationalization-offer many justifications for the use of the written
work of research assistants without attribution. They might say:
* The research assistant is "just a law student;" he was just doing
the drudge work. All the ideas in the piece were mine.
* All law professors use the written work of research assistants
without listing them as co-authors. Everyone understands that my
work may include some writing by a research assistant.
* The research assistant is getting paid. His work is a "work for
hire." It belongs to me.
All of these explanations sidestep the moral questions. One
moral question is whether the professor is or is not being truthful in
representing that he or she is the author of the work. Another moral
question is whether the appropriation of the work of a research
assistant is an abuse of power, whether it is wrong because it is
15. See injra text accompanying notes 30-35 for examples of this practice.
16. In offering tongue-in-cheek guidance to law professors on the acknowledgment of
student work on law review articles, Arthur D. Austin says, "[a]cknowledgment of student
research aid should be brief-if at all-lest suspicion be aroused that student participation
was more extensive than represented." Arthur D. Austin, Footnotes as Product
Differentiation,40 VAND. L. REV. 1131, 1146 (1987).
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[Vol. 42:467
disrespectful or exploitative of the research assistant.
II. AUTHORSHIP
What does it mean to be an "author"? Black's Law Dictionary
offers this explanation:
Author. One who produces, by his own intellectual labor applied
to the materials of his composition, an arrangement or
compilation new in itself. A beginner or mover of anything;
hence efficient cause of a thing; creator; originator; a composer,
as distinguished from an editor, translator or compiler."
In law practice, the person listed as the "author" of a brief might be
said to be truthful in signing a brief written by someone else, because
the signature does not represent that he wrote it, but only that he is
taking legal responsibility for its contents. 8 But with respect to
scholarly writing in law or in any other field, "authorship" is more like
authorship of a novel, a poem, or an essay. To say this article is "by"
me is to say, "I wrote this." Our professional codes prohibit all
dishonesty and misrepresentation 9 but include no specific
requirement of accuracy in attribution of words and ideas in written
work. However, definitions of authorship have been developed in
some other disciplines. One definition, published by the International
Committee of Medical Journal Editors, and published as policy by the
New England Journal of Medicine, states:
Each author should have participated sufficiently in the work to
take public responsibility for the content. Authorship credit
should be based only on substantial contributions to (a)
conception and design, or analysis and interpretation of data;
and to (b) drafting the article or revising it critically for
important intellectual content; and on (c) final approval of the
version to be published. Conditions (a), (b) and (c) must all be
met.2"
The editors developed these guidelines because senior
researchers were being listed as authors of studies done by their
17. BLACK'S LAW DICTIONARY 121 (5th ed. 1979).
18. This rationale was urged on me by several lawyers I have interviewed.
19. Model Rule 8.4(c), whose language appears in the ethical rules for lawyers in all
or nearly all states, says: "It is professional misconduct for a lawyer to: ... engage in
conduct involving dishonesty, fraud, deceit or misrepresentation." MODEL CODE OF
PROF'L CONDUCT R. 8.4(c) (2000).
20. Jerome P. Kassirer & Marcia Angell, On Authorship and Acknowledgments, 325
NEW ENG. J. MED. 1510, 1511 (1991). These criteria, adopted by the International
Committee of Medical Journal Editors, are published in the Uniform Requirements for
Manuscripts submitted to Biomedical Journals. Id.
2001]
MISATTRIBUTION IN LEGAL SCHOLARSHIP
subordinates even when they had had little or no involvement in the
work. The editors also were concerned because some studies listed as
authors assistants whose role had been purely technical or
ministerial.2 While these guidelines are written for articles reporting
medical research and reflect a somewhat different set of problems
from those that afflict legal scholarship, they offer useful guidance in
that they urge that designation as an author should be a statement
that the person has had significant involvement in the production of
the work. The listing of a non-involved person as an author or the
non-listing of an involved person fails to accurately identify who was
responsible for the creation of the work.
Another helpful guideline is offered by the Ethical Principles of
Psychologists.Principle 7(f) explains:
Publication credit is assigned to those who have contributed to a
publication in proportion to their professional contributions.
Major contributions of a professional character made by several
persons to a common project are recognized by joint authorship,
with the individual who made the principal contribution listed
first. Minor contributions of a professional character and
extensive clerical or similar nonprofessional assistance may be
acknowledged
in footnotes or in an introductory
statement ....
22
Another useful standard was adopted by the American
Association of University Professors ("AAUP") in 1990:
1. In his or her own work, the professor must scrupulously
acknowledge every intellectual debt-for ideas, methods, and
expressions-by means appropriate to the form of
communication.
4. Scholars must make clear the respective contributions of
colleagues on a collaborative project, and professors who have
the guidance of students as their responsibility must exercise the
greatest care not to appropriate a student's ideas, research, or
presentation to the professor's benefit; to do so is to abuse
power and trust.
5. In dealing with graduate students, professors must
demonstrate by precept and example the necessity of rigorous
honesty in the use of sources and of utter respect for the work of
21. Id.
22. Monroe H. Freedman, The Professional Responsibility of the Law Professor:
Three Neglected Questions, 39 VAND. L. REV. 275, 280 (1986) (quoting Ethical Principles
of Psychologists, 36 AM. PSYCHOLOGIST 633, 637 (1981)).
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others .... 23
In one respect, the problem of authorship of legal scholarship is
more troubling than in other fields. Most academic disciplines publish
scholarship almost exclusively through peer-reviewed journals, in
which every article is subjected to critical evaluation by other scholars
who have expertise in the topic addressed. Legal scholarship is
published almost exclusively in student-edited law reviews, where
articles are selected and edited by second and third year students who
may have no prior exposure to the topics of the articles they edit.
Misappropriation of student writing and other plagiarism might be
more likely to be caught by an expert reader than by a novice. An
expert might notice if the work of a novice (a research assistant) was
presented as that of an expert (the professor). If this is the case, it may
be easier to get away with plagiarism of student work in law than in
any other academic discipline.
When should a law student research assistant become a coauthor? Where is the line between research support and
collaboration? The New England Journal of Medicine guidelines
quoted above suggest that one is not an "author" unless all three of
the listed criteria are met.24 This standard is too exacting for legal
scholarship, since many articles are book-length and produced over an
extended period of time. A research assistant could have a very
significant role in research and writing and still not be involved in the
"final approval of the version to be published." Nevertheless, the
standards quoted illustrate the possibility of an articulated consensus
on authorship, which, if implemented, would make the claim of
authorship a more meaningful one. I will return to the question of
what should be the standards of authorship for law professors after
some further exploration of the problem.
III. PLAGIARISM
The flip side of the question of "who is an author?" is "what is
plagiarism?" To claim authorship of work that was in fact authored by
another is plagiarism. One respected definition of plagiarism was
articulated by Alexander Lindey:
Plagiarism is literary-or artistic or musical-theft. It is the false
assumption of authorship-thewrongful act of taking the product
23.
Bill L. Williamson, (Ab) Using Students: [T]he Ethics of Faculty Use of a Student's
Work Product, 26 ARIZ. ST. L.J. 1029, 1043-44 n.38 (1994) (quoting AAUP POLICY
DOCUMENTS AND REPORTS, Statement on Plagiarism 79-80 (1990)).
24. See supra text accompanying note 20.
2001]
MISATTRIBUTION IN LEGAL SCHOLARSHIP
of another's mind, and presenting it as one's own. Copying
someone else's story or play or song intact or with
inconsequential changes, and adding one's name to the result
constitute a simple illustration of plagiarism.25
This definition suggests that one could plagiarize only a creative
artistic work and that plagiarism refers only to the "taking" of the
whole of someone else's work. But more recent authorities define
plagiarism more broadly, both in the kinds of work that may be
plagiarized and in the possibility of an offense that involves only a
small portion of the work of another. The Modern Languages
Association offers a four-part definition of plagiarism:
I. Plagiarism is the use of another person's ideas or expressions
in your writing without acknowledging the source.
II. Simply put, plagiarism is using another person's words or
ideas without appropriate acknowledgment.
III. In short, to plagiarize is to give the impression that you have
written or thought something that you have in fact borrowed
from someone else.
IV. [Pllagiarism is:
a. reproducing someone else's sentences more or less verbatim,
and presenting them as your own;
b. repeating another's particularly apt phrase;
c. paraphrasing someone else's argument;
d. introducing another's line of thinking.26
The Modern Languages Association standards demand "that
every thought, sentence, idea, and expression, whether verbatim or
paraphrased from an 'outside source,' be acknowledged.""
The definitions of plagiarism do not link the obligation to
acknowledge the use of the words or ideas of another to the status of
the other person. The duty of attribution applies whether the words or
ideas taken are those of a lowly law student or those of Justice
Cardozo. Also, the obligation to attribute attaches whether the work
of another was published. If one plagiarizes unpublished writing, the
odds of getting caught are much lower, but the offense is the same.
Measured against these standards, a professor who uses a substantial
25. K. R. ST. ONGE, THE MELANCHOLY ANATOMY OF PLAGIARISM 52 (1988)
(quoting ALEXANDER LINDEY, PLAGIARISM AND ORIGINALITY 2 (1952)) (emphasis
added).
26.
Dursht, supra note 5, at 1260 (citing ONGE, supra note 25, at 54 ("citing the
Modern Language Association's 1975 definition of plagiarism")).
27. Id.
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[Vol.
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chunk of writing by a research assistant is engaged in plagiarism. He is
impliedly stating, "I wrote this," when he did not.
A.
Ghostwriting
When, if ever, is it proper to use the work of another without
proper attribution? Most people do not regard "ghostwriting" as
raising serious ethical concerns. Ghostwriting is different from
plagiarism in that the "ghost" is voluntarily writing for another, rather
than having his written work taken by another. The "ghost" consents
to the use of his work by another and allows the other to represent the
work as his own.
Perhaps the ethical problems relating to the law professor who
uses the writing of a research assistant can be resolved by an explicit
ghostwriting arrangement: the professor explains upon hiring the
research assistant that part of his work is to act as a ghostwriter for the
professor. The student will get paid, will get to see his words in print,
and will get a good recommendation for his next job.
Although explicit consent to the appropriation of one's work is
less ethically troubling than nonconsensual use, several problems still
remain (discussed below). Perhaps there are some circumstances, such
as the use of speech writers by politicians, when the use of
ghostwriters raises fewer ethical problems. The consent of the "ghost"
is not burdened by the same disparity of bargaining power that exists
between teacher and student. If the public knows that politicians use
ghost-writers to produce speeches, then most hearers are not
deceived. Between a law professor and a research assistant, however,
the ethical problems are only slightly ameliorated by an explicit
agreement of the research assistant to act as a ghostwriter.
B.
The Harmful Effects of Plagiarismin Legal Scholarship
Assume that some law professors plagiarize the work of their
student research assistants.28 So what? Is this more than a trivial
problem?
There are several different harms that may result from the
misappropriation by teachers of the work of research assistants.2 9
*
Delegation of thinking. A scholar who delegates research or
writing to another person is delegating part of the thinking that
28. See infra Part III.C for exploration of this question.
29. See also Williamson, supra note 23, at 1038-39 (offering a somewhat different list
of harms that come from faculty misappropriation of student work.)
2001]
MISA TTRIB UTION IN LEGAL SCHOLARSHIP
should go into the production of scholarship. In doing research,
there is much to consider about what to look for, where to look,
what to collect, what to identify as important about the
information collected, and how to interpret that information.
Writing is a way of thinking.3 ° Many writers discover their
thoughts about a topic by writing about the topic. If this work is
delegated, the student research assistant certainly thinks about
the research and the writing, but he may do very different
thinking and research than the professor would do. The work is
not informed by whatever judgment the professor has acquired
through years of research and writing. Some professors would
take a student's work and then redo the research and the writing
themselves-but some would not. Even if the work is redone by
the professor in some fashion, the delegation might result in a
significant diminution in the quality of the product.
Deception of the reader. Another harm from misappropriation of
student work (alluded to above) is the deception of the reader.
The reader of an article by a recognized scholar may accord
undeserved authority to ideas and conclusions reached in fact by
a second year law student.3' If the identity of the true author of a
passage were known, the reader might read more critically, might
rely on the work with less confidence. To the extent that a novice
is more likely to make mistakes in research or analysis than a
more experienced writer, these errors may then be further
disseminated by readers who rely on the published work.
Devaluation of the work of true scholars. If some professors claim
the work of others as their own, the work of scholars who do their
own work is devalued.32 Ideas, research, and writing are the
30. See generally Elizabeth Fajans & Mary R. Falk, Against the Tyranny of
Paraphrase:Talking Back to Texts, 78 CORNELL L. REV. 163, 166 (1993) ("chart[ing] ...
the nexus between reading and writing").
31. If an experienced researcher claims authorship of a paper when he was not
'directly involved' in the research, readers may accord greater authority to the work than it
merits because of the readers' respect for the senior author. See Douglas W. Cooper,
Unethical Scholarship Today: A Preliminary Typology, Address Before the Humanities
Science and Technology Conference (March 11-12, 1988) (citing The Integrity of the
Scientific Literature, 325 NATURE 207 (February 28, 1987)).
32. In censuring a lawyer for resume fraud in securing a law teaching position, the
D.C. Board on Professional Responsibility stated:
It cannot be argued that injury was minimal .... [C]ompetition for academic
positions assumes that preference will be given to the most qualified persons, as
determined largely by their credentials. When information is false, there is direct
injury to other qualified persons whose accomplishments are unfairly
subordinated.
SOUTH TEXAS LAW REVIEW
[Vol. 42:467
currency of academe. Originality of written work is essential to
the integrity of the academic system. A professor who claims the
work of another as his own-even if it is only part of an articleis engaged in academic fraud. If this professor gets away with this
fraud, perhaps receiving undeserved tenure, then the tenure
system is subverted-the validity of the review process is eroded.
+
Hobbling the professional development of the research assistant.
Every law student research assistant is an aspiring professional.
The professional development of every new lawyer depends on
her being able to show prospective employers what she can do.
Quality writing samples often open doors to good jobs. A
research assistant whose work is misappropriated by a professor
who publishes the work under the professor's name is cheated out
of the opportunity to advance by identifying or distributing that
product as a writing sample. If, for example, the student has
drafted a chapter of a book that is published under the
professor's name alone, the student can't list that work on his or
her resume.
+
Requiring collusion in deception by the student. If a student tries
to claim credit for work that has been published under the name
of the professor, the student may be accused of dishonesty or
insubordination, simply for giving an accurate account of who did
the work. The student is tacitly required to collude in the
professor's misrepresentation as to the authorship of the work.
This may be her first clinical lesson in professional dishonesty.
+
Erosion of the integrity of the professor. The professor, by
misappropriating student work, has taken a step down a slippery
slope.33 If she succeeds in passing off the student's work as her
own, what will she rationalize next? Perhaps she will ask the law
school to reimburse her for a trip whose purpose was personal,
not professional. Perhaps she will take home books or office
In re Hadzi-Antich, 497 A.2d 1062,1065 (D.C. 1985).
33. See Lisa G. Lerman, Lying to Clients, 139 U. PA. L. REV. 659, 684-87 (1990)
(discussing the slippery slope of deceptive behavior). Moral philosopher Sissela Bok
explains:
Deceit by lawyers presents special dangers to trust .... Deceit is tempting...
since it comes so easily at first. One word is spoken instead of another, a
document backdated so as to deflect inquiry, a false claim made in the process of
negotiation, some figures altered in a tax document .... This ease makes lies not
only tempting but *also peculiarly corrupting, especially as more and more
concealment and deception may seem needed to keep up a false front ....
there is nothing about being a lawyer which adds legitimacy to such choices.
Sissela Bok, Can Lawyers Be Trusted?, 139 U. PA. L. REV. 913,923 (1990).
But
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MISA TTRIB UTION IN LEGAL SCHOLARSHIP
supplies that belong to the law school. Perhaps next time she will
ask the research assistant to write the whole article, not just Part
II.
*
Modeling deceptive conduct as a method of achievingprofessional
success. Deceptive behavior corrupts the integrity of the deceiver
and of others who know about it. The professor is modeling
deceptive behavior for the research assistant. The message is that
professional advancement may be achieved by dishonest and
opportunistic behavior. The student might infer that she also may
do whatever she can get away with if it will advance her
professional position.
*
Harm to the legal profession. If law professors become cynical
about whether it matters to be truthful in representation of who
authored a piece of work, those same professors may take that
attitude toward truthfulness into classrooms where they teach the
law of evidence, professional responsibility, or other courses. The
erosion of the integrity of the legal academy could further erode
the ethical sensibility of the profession as a whole.
This inventory of possible harms from misappropriation of
student writing suggests that this type of conduct is not ethically
ambiguous or trivially unethical. Where one person takes the work of
another as his own, both writers, many readers, and the academic
community are harmed.
C.
How Often Do Law ProfessorsEngage in Plagiarism?
One question that I can't answer is whether the problem of
plagiarism by law professors (of writing by research assistants or by
others) is a big problem or a small problem. We know that the
problem exists-many of us know of examples. There are very few
cases in which allegations of plagiarism by law professors have
become public, because when such allegations are made, they usually
occur behind closed doors and never see the light of day. I have not
done a systematic collection of confidential stories about plagiarism
by law professors, but I have found a few stories in published articles
and decisions and have seen or heard other stories in the course of my
own teaching career.
One story was recounted by Professor Monroe Freedman in his
seminal 1986 article on ethical issues that confront law professors.
A senior professor at a prestigious law school published a book
under his own name. He had been Assistant Legal Advisor to
the Department of State and chairman of a federal agency.
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After publication of the book, the author of an article previously
published in a scholarly journal complained that extensive
portions of the book had been taken verbatim and without
attribution from his article. The professor, however, was
unfazed: he hadn't committed the plagiarism, he explained; it
had all been done by his student research assistant, who was too
young and inexperienced to know any better. To the best of my
knowledge, the explanation was accepted. The professor today
has emeritus status at the same law school.34
Another story is reported by Professor Bill Williamson of the law
school at Lewis and Clark College:
[O]ne professor begins each research assistantship by asking
students whether they desire "money or credit" for their
endeavors. After assigning students huge projects with little
regard for their other academic responsibilities, this professor
routinely gives incompletes at the end of [the] semester. At the
same time, he enrolls the same students for an additional term
of independent-study research, while the remaining incomplete
is still outstanding.35
Williamson implies that the student is pursuing research assigned
by the professor to assist the professor with his own work, rather than
allowing the students to choose topics for research based on their own
interests. By giving the students incompletes, then, the professor
maintains a stable of unpaid research assistants who must continue to
toil at his research.
Another public case involved John T. Baker, who was Dean of
Albany Law School.36 Baker was forced to resign in 1993 because of a
long list of complaints, including an allegation of plagiarism. 3 Baker
was alleged to have written a memorandum to his board of directors
discussing questions about his educational philosophy.38 The memo
apparently included, without attribution, portions of an article that
had been published in the Montana Law Review by Dean John
Sexton of New York University Law School.3"
34. Freedman, supra note 22, at 281.
35. Williamson, supra note 23, at 1029 (quoting Matthew P. Bergman, Faculty
Exploitation of Students: The Need for Reform 1-2 (1989) (unpublished manuscript on file
with Professor Douglas K. Newell, Northwestern School of Law of Lewis and Clark
College)).
36. Gary Spencer, Albany Dean Takes Leave Under Fire: Faculty, Board Criticism of
PerformanceMounts, N.Y. L.J., May 11, 1993, at 1.
37. Id.
38. Id.
39. Id. Dean Sexton apparently didn't mind that his work had been misappropriated.
Id. The Albany Law School Board of Directors, on the other hand, might have objected to
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Another public case involved not plagiarism, but its close cousin,
resume fraud. 4° An assistant professor was forced to resign from
Southern Methodist University Law School after the school
discovered that he had submitted a resume inflating his credentials
when he was being considered for appointment at SMU." He had
falsely stated that he was first in his class at Oklahoma College of Law
(his class rank was twenty-six) and had falsely stated that he was
Editor-in-Chief of the law review (he had been a member of the
editorial board, but not the Editor-in-Chief).4 '2 After his resignation
from the law school, he was disciplined for this dishonest conduct by
the D.C. Court of Appeals.43
There are some examples of plagiarism of student work from
outside of the legal academy. One involved a Canadian professor in
an MBA program who took a paper written by a student for a course
with that professor and presented it at a professional meeting as
having been co-authored by himself and another professor.' The
professor had made editorial suggestions on the paper but was not a
co-author.4 '5 An Ontario court decided that the professor and the
University of Ottawa were liable for "infringing the copyright
,,46
interests and moral rights of the student ....
In another case, a professor at the University of Utah was
discharged by the university based on his having represented as his
own work two papers, nine-tenths of which had been written by two
students of the professor. 47 Also, he was charged with improperly
failing to give co-authorship to a colleague on a research project. The
tenth circuit upheld the university's dismissal of the professor.
I have encountered several situations in which law teachers have
taken drafts by research assistants and incorporated them into books
and articles. Also, I have seen instances in which professors have
intentionally or inadvertently lifted passages from other sources into
Dean Baker passing off Dean Sexton's ideas as his own.
40. In re Hadzi-Antich, 497 A.2d 1062, 1063 (D.C. 1985).
41. Id.
42. Id.
43.
44.
Id.
Student
Wins Plagiarism Suit Against Professor and University, 10 J.
PROPRIETARY RIGHTS 24 (1998).
45. Id.
46. Id.
47. Yu v. Peterson, 13 F.3d 1413, 1414 (10th Cir. 1993), discussed in Ralph D.
Mawdsley, Faculty Plagiarism in Higher Education, 91 WEST'S EDUCATION LAW
REPORTER 1, 4-5 (1994).
48.
Id. at 1417.
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their own writing.
As a law student, I was cite-checking a journal article by a law
professor. The article was discussing a series of decisions by the
United States Supreme Court. As I checked the references, I
discovered that a significant portion of the text of the article was
drawn verbatim from the opinions that were the subject of the article,
but without quotation marks or citation of those passages to the
opinions from which 'they had been taken. I marked the lifted
passages and turned my section in to the editor who was in charge of
this article. I don't know how the editor handled the problem, except
that the article eventually was published and that there was no public
allegation of plagiarism.
Even without knowing the scope of the problem, I believe we
should consider whether law schools should have policies or
procedures to prevent or to respond to allegations of plagiarism by
law professors. Most law schools have honor codes or rules of conduct
for law students and most of them prohibit plagiarism. Nearly half of
the honor codes don't bother defining plagiarism.49 Perhaps they
reflect a belief that, by the time she gets to law school, a student
should know what constitutes plagiarism. Most law schools have no
corresponding rules of conduct for law teachers. Some universities
have rules of conduct that govern all faculty, but because many law
schools are functionally more independent from the universities than
are most other departments, law professors may not even know of the
existence of these rules.
Even at a school at which no professor had ever passed off the
written work of another as his own, a problem could arise. Consider
the following hypothetical:
A partner in a law firm often publishes articles on issues
related to his work. These give the firm visibility in his practice
area and attract new clients. Some of the articles are written by
associates in the law firm. The lawyer has read and made some
comments on these articles, but ninety percent of the work was
done by associates. Because the lawyer is the senior person in
his practice area, the articles are published under his name
alone. The lawyer eventually decides to leave the firm and go
into academia. He circulates his resume to the appointments
committees of several law schools. All of the articles that he has
published under his name are listed on his resume. On the
strength of his extensive list of publications, the lawyer is hired
49. Robert D. Ellis, Plagiarismin Law School Close Resemblance of the Worst Kind,
31 SANTA CLARA L. REV. 103, 110, 117 (1990).
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as a professor. The law school that hires this lawyer onto its
faculty counts toward tenure articles published before a
professor was hired, so these same publications are evaluated by
external reviewers when this professor comes up for tenure. The
professor is granted tenure.
Should a law school care if the prominent lawyer it hires has
written his own articles? Some contemporary law school deans,
preoccupied with the U.S. News ratings, spend thousands of dollars
every year to bring in prominent speakers and more thousands to brag
about it in glossy brochures mailed to thousands of lawyers and law
professors.
These deans might not care who wrote which articles. We teach
in an era in which marketing plays a larger and larger role in law
school administration. If the prominent lawyer hired by the law school
is highly visible and regarded as "a catch," a dean might say, "Why
should we care if some minions in his firm wrote some of his articles?"
Why, indeed? One reason we should care is that the integrity of
our hiring, tenure, and promotion system depends on being able to
know that the work evaluated in that process was produced by the
person being evaluated. If a law school hires this prominent lawyer
and tenures him based on a body of ghost-written work, the message
to any aspiring professor of law is that one route into the academy is
to enlist others to write articles and find a way to claim them as one's
own. The message to any untenured faculty is to hire talented
research assistants and then claim authorship of their work. And the
message to those who do their own writing is that the school does not
care about scholarship, only about the appearance of scholarship.
IV. WHAT TO Do ABOUT DISHONEST LAW PROFESSORS
Let's assume that it matters to most academics whether the
scholarship evaluated in hiring, promoting, and tenuring law
professors is actually written by those law professors. We may care
about it, but the general practice on this topic is "don't ask, don't tell."
I don't know of any schools that ever ask applicants or candidates for
tenure whether any of their work was ghostwritten by research
assistants or other underlings. To ask the question might seem
unseemly, like an accusation of unethical behavior. And if the
question were to be asked, query whether the plagiarists would
answer the question honestly. Likewise, most such misattribution
could not be identified by any review of the work itself. A hiring
committee that sought to authenticate the authorship of written work
SOUTH TEXAS LAW REVIEW
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claimed by a faculty candidate might inquire of references whether
any of the candidate's work had been ghostwritten. This type of
inquiry would be worthwhile not for all faculty candidates, but for
those coming from environments in which ghostwriting is common.
Most law professors have a sense of integrity that would require
them to write their own articles and not to take the work of others and
represent it to be their own. Some professors make extensive use of
work done by others. Given the general lack of articulated standards
requiring that one write one's own articles, some may not realize that
they are engaged in plagiarism. They may believe that what they are
doing is no different from anyone else. Consider this example:"
A student was working as a paid research assistant for a
teacher. The teacher had asked the student to write a memo on
a legal issue. The student carefully researched and wrote a fifty
page memo. The teacher was very appreciative of the work,
read it, and edited it, making perhaps ten or fifteen stylistic
changes. The teacher then reformatted the memo and published
it under his own name as a chapter of a treatise. The professor
acknowledged the "able assistance" of the research assistant in a
footnote.
The student was troubled by the teacher's appropriation of his
work. He came to ask me, in confidence, whether I thought the
teacher's conduct was proper. He showed me the lightly edited
memo. I concurred in the student's judgment that his work was
being plagiarized. The student didn't want to make a fuss. He
needed a good reference from the professor to get a job for the
following year. At the same time, he was upset and wanted to
know if I thought he was overreacting.
The work became part of the teacher's body of scholarship
that was considered when he came up for tenure shortly after
this episode. I did not report the appropriation of the student's
work. The story had been shared with me in confidence. If I had
reported it, the student who wrote the memo would have been
identifiable as the source of the story. I did consult a couple of
colleagues in confidence about this issue; neither of them
thought the situation presented a serious question."
50. I have taught at six American law schools. These events occurred at one of them.
51. One participant in the symposium suggested that I had "wimped out" (or words
to that effect) by not confronting or reporting my then colleague. He has a point, of course.
On the other hand, I think my reaction reflects the complexity of these situations and the
difficulty of becoming a "whistle blower." Factors that contributed to my inaction were the
confidentiality of the communication; my not being tenured at the school where this
occurred; the fact that I liked this professor and had no desire to do him harm; and my fear
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What should happen to this professor? Leaving aside the particular
constraints, it would be terribly awkward to bring up this kind of
problem when a candidate is being considered for tenure. The stakes
are too high; the issue is too volatile. To raise such a question might
lead to an inquisition about whether the professor had himself written
his other articles. On the other hand, to let the issue go is to abandon
the institutional standard of integrity in scholarship. It makes no sense
to grant tenure to a professor because he was able to hire and
supervise clever research assistants. Even if the ideas for the writing
were the professor's, the research, the writing, and the analytic ideas
were the student's.
Another student had written a paper for a seminar.52 She thought
the paper was pretty good and wanted to publish it as an article. She
had approached the tenured professor who had taught the seminar to
discuss possible publication. The teacher tried to persuade the student
that she should not publish her paper. Why? The teacher was writing a
book and wanted to develop the ideas in the paper in a chapter of his
book. The teacher was convinced that the student had gotten the main
idea for the paper from the teacher, so, in his opinion, the paper was
not really the student's work. The student disagreed-she felt that the
idea for the paper had been her own. Later the student saw a draft of
the relevant chapter of the teacher's book. The teacher had used
portions of the paper without acknowledging the student's work.
Assume that the law school administration was apprised of this
problem. What should they do? Call in the teacher and the student to
mediate? Probably there never would be agreement as to who
originated the ideas in the paper. The dean's office could compare the
paper and the chapter to determine whether the student's work was
appropriated by the teacher. But if it was, then what? Even to
contemplate this process makes one's skin crawl-it would be a
devastating humiliation for the teacher and would leave scars that
might never heal. Some law professors would take the position that
that my raising this issue would cause retaliation against me or the student from friends of
this professor. But for the student's concern for confidentiality, I would hope that I would
at least have gone to the colleague to ask about the use of the student's work. Even this
step, however, is fraught with difficulty.
52. The events described here also took place at one of the six law schools where I
have taught. The student confided in me about this problem. I recount the story from the
student's perspective, not having verified the facts. Of course I could not attempt to verify
without breaching the student's confidence. I believe.I can write about this and other
stories without breaching a confidence because the stories are generic enough that there
are similar examples at many other schools. Also, I have changed and omitted a few facts
to protect anonymity.
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[Vol. 42:467
the teacher had done nothing wrong. At most schools, there are no
standards that would be violated, even if the teacher did appropriate
the student's writing.
Part of the solution to these problems has to be prevention.
Unless law schools adopt policies on appropriation of student work by
professors, or on presentation of ghostwritten work as part of one's
record, they are in a very poor position. In the absence of standards,
professors with wobbly moral compasses are left to their own devices.
And if one such professor does something that seems egregious to
some faculty, others will line up in defense of the one, fearing that if
this professor is scrutinized, their own judgment also might be
questioned.
Prevention is cleaner than remediation. It would be a simple
matter to inform candidates for faculty positions that any work that
had been written in whole or in part by someone other than the
candidate should not be presented as a credential for an academic
position. New faculty could be informed of a policy that research
assistants could be asked to do research for professors, but that
contributions of research assistants must be fully and accurately
described in the published work. The policy might make clear that
professors would be expected to write their own articles unless they
were working with acknowledged co-authors.
Policies of this sort would not prevent abuses. Some professors
who pass off students' work as their own would not be deterred by a
simple policy. But many lawyers entering academia would be much
helped simply by having guidance as to what is permitted. Once a
policy is in place, it is a point of reference that might be used in
addressing misappropriation of student work.
A major obstacle in addressing this problem is that law
professors, like everyone else in the legal profession, dislike adopting
rules that constrain their own behavior. The Association of American
Law Schools ("AALS") published Standards of Good Practices by
Law Professors in the Discharge of Their Ethical and Professional
Responsibilities in 1989."3 The AALS guidelines address the question
of appropriating the work of another:
When another's scholarship is used-whether that of another
professor or that of a student-it should be fairly summarized
and candidly acknowledged. Significant contributions require
53. ASSOCIATION OF AMERICAN LAW SCHOOLS, Statement of Good Practices by
Law Professorsin the Discharge of Their Ethical and ProfessionalResponsibilities, in 1999
HANDBOOK 89, 94 (1989).
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acknowledgment in every context in which ideas are exchanged.
Publication permits at least three ways of doing this: shared
authorship, attribution by footnote or endnote, and discussion
of another's contribution within the main text. Which of these
will suffice to acknowledge scholarly contributions by others
will, of course, depend on the extent of the contribution.
While this statement is sort of vague and exhortatory, it at least
flags the issue that when you use someone else's work you are
supposed to say what is yours and what is theirs, even if the somebody
else happens to be a law student. The AAUP standards quoted earlier
are more specific.55
If standards of authorship were presented to a faculty for
adoption, the proposal would be unlikely to be approved. Many law
professors would judge it to be a waste of time to adopt standards of
authorship. Some would urge that there is no misappropriation of
written work by law professors. Others would accede that law
professors do use the written work of their research assistants, but
that this is an acceptable practice and that the contributions of
research assistants usually are marginal at best. 6 Still others would
urge that the line-drawing needed to articulate standards would be too
difficult. At some law schools, a barrier to the adoption of standards
for authorship would be the widespread knowledge that certain
individual colleagues are flagrant offenders. One or two of them might
be respected and powerfil colleagues. A faculty would not want to
risk offending these productive people.
While the adoption of standards would be helpful, it would be
unlikely except at a school where a strong dean made this issue a
priority, or at a school where the faculty enjoyed a high degree of
moral consensus. An alternative "fix" to this problem would be to
increase consciousness of faculty plagiarism in the legal academy so
that appointment committees reviewing resumes might be alert to the
54. Id. at 92.
55. See discussion supra, Part II.
56. Some law professors seem to believe that law students would be unlikely to be the
source of significant ideas. One example is in a commentary by Professor Todd Rakoff on
the famous article by Lon Fuller and William Perdue, titled The Reliance Interest in
ContractDamages. Professor Rakoff notes that this article was co-authored by a famous
Harvard law professor and his research assistant. He mentions that "[i]n addition to
looking up cases, Perdue wrote the initial drafts of some of the case law analysis."
Nevertheless, Rakoff says "I will treat Fuller as the author; for the range of conceptual and
jurisprudential issues at the heart of my commentary, he surely was." Todd D. Rakoff,
Fuller and Perdue's The Reliance Interest as a Work of.Legal Scholarship, 1991 WiSC. L.
REV. 203, 203 n.3 (1991) (citing Fuller & Purdue, The Reliance Interest in Contract
Damages,46 YALE L.J. 52, 373 (1936-1937)).
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possibility that some publications of a senior candidate might have
been ghostwritten. Even without a policy in place, this question could
be asked of candidates who had published extensively while in private
practice or in government jobs, or of their references.
Another partial "fix" would be to convene a faculty discussion of
proper and improper uses of the work of research assistants. Such a
discussion would be less threatening than a proposed rule. Many
professors might be more cautious about using the work of others and
more scrupulous in acknowledging the assistance of others if these
questions were called to their attention.
V.
PERPETUATING THE DOUBLE STANDARD
Perhaps it is unrealistic to envision a law school doing more than
vague exhortation to encourage truth in authorship. One problem
with this conclusion is that it leaves us with an indefensible double
standard for students and for teachers. A student who lifts any portion
of the work of another in a paper, if caught, will become a respondent
in a disciplinary proceeding and may be expelled or suspended. At
many schools, one sees one or two or three honor code cases per year
involving alleged plagiarism.
If we accept this status quo, we apply the guillotine to a sampling
of inexperienced writers for incorporating the work of another into a
paper and not using quotation marks or footnotes. The novices get the
axe, but we turn a blind eye to the very same conduct by law
professors, especially if the appropriated material was written by a
student. This makes no sense. Most law professors are far more
experienced writers than most law students. If one were to decide to
punish one group for this variety of academic dishonesty and not the
other, the fairer choice would be to try to educate the students and
save the guillotine for dishonest or predatory professors.
Another solution to this dilemma is to reevaluate our standards
for plagiarism by students and to avoid penalizing students for
conduct for which we would not penalize teachers. Given the
complete lack of standards for teachers, perhaps we should just omit
the offense of plagiarism from our honor codes. We could throw in the
towel, acknowledging that everyone else in the legal profession seems
unconcerned about misattribution of written work, so why should the
law schools be so prissy about it?
Most of us would be pretty uncomfortable about abandoning the
standards of authorship of student work. The students' work is
graded, and employers rely on the grades, as a measure of student
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IN LEGAL SCHOLARSHIP
competency. If we abandoned rules prohibiting plagiarism, even more
students probably would turn in work done by others.
A step in the direction of reducing the breadth of the double
standard would be to ensure that a student is not charged with
plagiarism where the "passing off" reflected more a lack of education
about proper attribution than a deliberate deception. One might
prosecute a student who turned in as her own a paper that had been
written by a previous student, but one might not prosecute a student
who turned in a paper that ineptly paraphrased a series of articles on
his topic, occasionally borrowing sentences without quotation marks.
This would be a good move even if we were not confronted by an
indefensible double standard. I am aware of several honor code
proceedings against students for inadvertent or inept plagiarism.
One student who was prosecuted for plagiarism was one of the
most truthful and conscientious students I have ever had. I was her
clinical supervisor (not at my present school). Her notes in her case
files on the steps taken on behalf of her clients were incredibly
detailed and thorough. Her plagiarism was the result of a compulsive
effort to state the law correctly in two term papers. She cited her
sources, but the language of her papers was too close to that of her
sources for comfort. She took extensive notes on the articles she read,
not realizing that her notes were verbatim. Then she copied over the
notes in the course of organizing the material to write the paper. By
the time she began drafting, she had lost track of which words were
hers and which were the words of her sources. Although she had
attended a fine university, she never took a course in college for which
she was required to write a paper. She arrived at law school clueless
about how to write a research paper. This student was prosecuted
under the law school's honor code and was suspended from law school
for two years.
How can we justify the terrible penalty imposed on this
conscientious student when we don't even have any rules governing
attribution by teachers?
VI. STANDARDS FOR AUTHORSHIP OF LEGAL SCHOLARSHIP
My colleague Professor Leroy Clark suggests that a law professor
or a lawyer should err on the side of including subordinates as coauthors. His personal standard for deciding who is a co-author is that
"if the student is an actual drafter of a body of the article, coauthorship is warranted, even if the main ideas.., were mine. A
footnote mention is appropriate when the student merely does
SOUTH TEXAS LAW REVIEW
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background research, but no writing."57 Clark suggests that the senior
author should take responsibility for offering co-authorship to
assistants whose status in relation to the senior author is "such that
they would not... [risk] raising the issue" with the senior person. 8 He
reports that he applied this standard to give co-authorship to a third
year student on an article that was published before he got tenure.
The distinction between drafting and research is a useful one but
requires refinement. In addition, the senior author might assess the
contribution of the research assistant in relation to her own work. For
example, a student who drafted one page of a hundred-page article
should not be listed as a co-author. A student who drafted
parenthetical summaries of court decisions for footnotes to an article
should not be listed as a co-author. But a student who drafts a
significant portion of the text of an article should become a co-author.
Even if the contribution of a research assistant is too small to be
worthy of co-authorship, a lawyer or a law professor might consider
an intermediate form of credit. One option is a byline that reads "by
X with the assistance of Y." Another is a footnote acknowledgment
that spells out what was the contribution of the research assistant. "X
synthesized the literature and helped draft Section II"; or "X did the
research for and produced a first draft of Section III."
To draw the distinction between research and drafting may
underrate the importance of research. Research involves the exercise
of judgment and discretion about where to look, what to collect, how
to organize it. Even when a research assistant has substantial guidance
from a professor, the collection and assembly of materials is an
essential and intellectually demanding part of the work of writing an
article. The work is the collective product of the person who
conceived the idea for the article, the person who does the research,
the person who does the writing, and the person who does the editing.
All this points toward more frequent listing of co-authors in legal
scholarship. For untenured professors, this may be problematic.'
Some schools will not consider co-authored works as part of a
portfolio of work considered for tenure. Other schools will consider
57. Memorandum from Leroy Clark to Lisa Lerman (Dec. 16, 1992) (on file with
author).
58. Id.
59. Id.
60. A few professors, like Professor Clark, may be able to resist institutional pressure
to claim sole authorship, but often professors who can do that are very secure in their
prospects for tenure because of their credentials or positions in the law schools. Those
whose entitlement to tenure is less clear are more vulnerable to institutional pressure.
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IISA TTRIB UTION IN LEGAL SCHOLARSHIP
co-authored works but will accord less weight to those. Standards like
these discourage law professors from giving co-authorship even where
it might be appropriate. Law schools should re-evaluate the weight
attached to co-authored works. Co-authored works should spell out
the respective roles of the authors, but where the division of labor is
articulated, collaborative work should be valued no less than soleauthored work.
VII. CONCLUSION
The question of whether teachers should take the written work of
students and represent it to be that of the teacher seems almost
pathetically simple. The answer should be no. To represent the work
of another as one's own is dishonest. But somehow in the rush to
produce "major" scholarship in a field in which quality is often
confused with length and number of footnotes, the impetus to enlist
others to help with the writing is very strong. And perhaps some
versions of that practice are entirely innocuous. But in some
situations, students feel taken advantage of by teachers. Some uses of
student work without attribution are deceptive to the reader. Even if
no one is upset and no one is harmed by the deception, the
misappropriation of written work is harmful to the integrity of those
who do it and those who watch.
What should be the relation of professor to research assistant? At
one end of the spectrum, the relationship might be collegial and
mutually supportive. At the other end of the spectrum, it might be
predatory and exploitative. One of the reasons why the question of
authorship is worthy of attention is that the professional development
of each aspiring lawyer depends on his learning writing skills and
producing written work. Whether as a student or as an associate in a
law firm, every writer should be entitled to claim her written work as
her own. Much as the professors might need to publish to avoid the
perilous consequences of not doing so, query whether they need to
conceal the contributions of those who assist them. The professors are
in secure professional niches compared to their students. If one needs
credit for his own written work more than the other, it is surely the
student, not the teacher. But more important, law professors offer
professional models for their students, especially for those students
with whom they work closely. If what we model is a hierarchical
system in which the dominant party is entitled to take from the
subordinate party, those values will continue to be replicated
SOUTH TEXAS LAW REVIEW
[Vol. 42:467
throughout the legal profession. 6' This examination of the question of
authorship suggests that there is no justification for a professor to take
the work of a research assistant and publish it as his own.
61. See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J.
LEGAL EDUC. 591, 602-08 (1982) (discussing how this hierarchical system begins in law
school and is carried with students as they enter the legal profession).